FIRST SECTION
CASE OF
BALAŽOSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application no.
45117/08)
JUDGMENT
STRASBOURG
25 April 2013
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Balažoski v. the former Yugoslav Republic of
Macedonia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefčvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Mřse,
Ksenija Turković,
Dmitry Dedov, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 2 April 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 45117/08) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Macedonian national, Mr Dževit Balažoski (“the
applicant”), on 9 September 2008.
The applicant was represented by Ms T.
Siljanoska, a lawyer practising in Kičevo. The Macedonian Government (“the
Government”) were represented by their former Agent, Mrs R. Lazareska Gerovska,
succeeded subsequently by their present Agent, Mr K. Bogdanov.
The applicant complained that the Supreme Court’s
judgment to reject his appeal on points of law as inadmissible ratione
valoris, contrary to its earlier judgments in the same proceedings upholding
such appeals lodged by the plaintiff violated his rights under Article 6 of the
Convention.
On 17 March 2011 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1956 and lives in Kičevo.
On 1 April 1998 the applicant’s ex-wife (“the plaintiff”)
brought a civil action against him seeking a declaration that she owned a half share
of a property acquired during their marriage or, as an alternative, monetary
compensation equal to half of its value, which was not specified in the claim.
The plaintiff set the claim value of the dispute (вредност
на спорот) at 10,000 Macedonian denars (MKD) (approximately 160 euros
(EUR), as a basis for calculation of the court fees. The case was heard in the Kičevo
Court of First Instance (“the first-instance court”).
Both parties were legally represented in the
proceedings. According to an expert report of 19 May 1998, the value of the
property at issue was set at MKD 6,012,944 (approximately EUR 98,000).
On 9 October 1998 the first-instance court dismissed
the plaintiff’s claim, which it summarised as follows:
“to recognise that the plaintiff holds title to a half share of
the [property], it being joint matrimonial property ... and if the [applicant]
wants to be released from this obligation, to pay the plaintiff the sum of MKD
3,006,472 (approximately EUR 49,000)”.
It established that the applicant, who had been
living and working in Austria, had paid for the house that had been constructed
on a land owned by his late father. The plaintiff had not contributed to the
construction of the house. As specified in the introduction to the judgment,
the court set the value of the dispute at MKD 3,006,472. On 14 April 1999 the
Bitola Court of Appeal upheld the judgment.
The plaintiff challenged the lower courts’
judgments by lodging an appeal on points of law (ревизија) with the Supreme Court. She complained that the first-instance
court had been assisted by an unqualified interpreter and that it had wrongly
established the facts regarding her contribution to the construction of the
house, which was a matrimonial property. The public prosecutor also requested a
protection-of-legality review (барање
за заштита на
законитоста) arguing that the lower courts had wrongly established that the
parties had lived together for ten years, instead of twenty-one years (their
marriage had terminated de facto in 1997 when the plaintiff had left the
house). The prosecutor further argued that the house in question, the value of which
was German Marks 190,887, had been constructed between 1989 and 1996. The lower
courts had failed to consider the plaintiff’s contribution to the construction
of the house, as a property obtained in wedlock.
On 30 September 1999 the Supreme Court upheld
both the legality review request and the plaintiff’s appeal on points of law and
remitted the case to the first-instance court for fresh examination. It held
that the lower courts had incorrectly established that the house in question
had been constructed while the parties had no longer been married. In the court’s
view, it had been in 1997 when the applicant had explicitly declared his intention
to separate from the plaintiff. It was irrelevant that the parties had not
lived together for many years before (while the applicant had been in Austria). Similarly, it was of no importance whether the plaintiff had contributed to the
construction of the house. Had it been constructed during marriage, it had been
a joint property. The introductory part of that judgment specified that the
value of the dispute was MKD 3,006,472.
By judgments of 26 May 2000 and 13 June 2001 the
first-instance court again dismissed the plaintiff’s claim. Both judgments were
set aside by the Bitola Court of Appeal on 29 January and 11 December 2001
respectively. All four judgments indicated the same value of the dispute (MKD
3,006,472) in their introductions. The case was again referred to the
first-instance court for examination.
As submitted by the Government, at a hearing on
15 May 2002 the first-instance court established that the applicant had lodged a
counterclaim requesting that the court award him ownership of the entire property
at issue. It was decided that both claims would be dealt with in a single set
of proceedings.
On 25 December 2002 the first-instance court
ruled partly in favour of the plaintiff and awarded her ownership of a 5% share
of the property. It further ordered that the applicant recognise the plaintiff’s
rights of ownership or pay her 5% of the property’s value, previously
calculated to be MKD 6,012,944. It dismissed the plaintiff’s claim to be
recognised as the owner of a half share of the property or to receive monetary
compensation of MKD 3,006,472. Furthermore, the applicant was awarded ownership
of the remaining 95% share. His request to be recognised as the owner of the
entire property was dismissed. The court also ruled on the trial costs. This
judgment also indicated MKD 3,006,472 as the value of the dispute.
On 22 October 2003 the Bitola Court of Appeal
dismissed an appeal by the plaintiff and upheld an appeal by the applicant. It ordered
a re-examination of the case concerning the first-instance court’s judgment
awarding the plaintiff ownership of a 5% share of the property or the
equivalent monetary compensation and dismissing the applicant’s claim to be
declared the sole owner of the entire property. It also quashed the
first-instance court’s judgment regarding the trial costs.
Оn 20 November 2003 the
plaintiff lodged, with the Supreme Court, an appeal of points of law
challenging the lower courts’ judgments, namely the dismissal of her claim to
be declared the owner of a half share of the property or to receive the
equivalent monetary compensation, as well as the courts’ award of ownership to
the applicant of 95% share. She alleged substantial procedural flaws and errors
on the law. The applicant did not submit observations in reply.
By a judgment of 18 May 2005, the Supreme Court accepted
the plaintiff’s appeal on points of law and set aside the lower courts’ judgments
in the disputed parts. It found that the lower courts had provided conflicting
and insufficient reasons for their judgments. They had given contradictory
arguments concerning the time when the house had been constructed and whether
the latter could be regarded as a joint property obtained during marriage.
Since the first-instance court had not complied with its instructions outlined
in the judgment of 30 September 1999 (see paragraph 11 above), the court ordered
that the case is considered by a different panel of judges of the
first-instance court. The introductory part of that judgment specified that the
value of the dispute was MKD 3,006,472.
On 14 November 2005 the first-instance court allowed
the plaintiff’s claim, awarding her ownership of half of the disputed property,
as a joint property acquired during marriage. It also ordered the applicant to
recognise the plaintiff’s rights of ownership to that part. It further
dismissed the applicant’s claim to award him ownership of the entire property
at issue. On 24 October 2006 the Court of Appeal dismissed an appeal by the
applicant and upheld the lower court’s judgment. Neither judgment contained any
information about the value of the dispute.
On 7 December 2006 the applicant lodged, with
the Supreme Court, an appeal on points of law arguing that the lower courts had
not followed the instructions of the Supreme Court’s judgment of 18 May 2005
(see paragraph 17 above). In this connection he complained that they had not
established the relevant facts, namely when had the relations between the
parties deteriorated and what had been the plaintiff’s contribution to the
construction of the house. The plaintiff submitted observations in reply, in
which she requested that the appeal be rejected as inadmissible.
On 20 March 2008 the Supreme Court, referring to
sections 34 (2) and 368 (3) of the Civil Procedure Act 1998 (see paragraph 21 below),
rejected (отфрла) the applicant’s appeal as inadmissible ratione valoris.
The court stated:
“While assessing the admissibility of an appeal of points of
law, values of the dispute regarding a claim and a counterclaim are not
cumulative. The admissibility of an appeal on points of law is assessed on the
basis of the value of the dispute of the claim and the counterclaim taken
separately.
In the present case, the value of the dispute regarding the
claim was set at MKD 10,000. The claim value regarding the counterclaim is
neither specified nor there is evidence that court fees were paid. Having
regard to the list of legal fees for the legal representation of the [applicant],
it is clear that [his lawyer] requests the payment of MKD 2,000 for legal
representation, which corresponds, as per the fee scale of the Macedonian Bar,
to a claim value between MKD 25,000 and MKD 50,000 ... According to a list
of court fees under the Court Fees Act, the plaintiff paid court fees in amount
of MKD 1,500, which corresponds to a claim of MKD 40,000 in value. In view of
the foregoing, the appeal on points of law is inadmissible. The Supreme Court
accordingly rejects the appeal on points of law as inadmissible under section
378 of the Civil Proceedings Act. According to section 474 of the Civil Proceedings
Act (“Official Gazette” no.79/2005) provisions of the old Civil Proceedings Act
(“Official Gazette” no.33/98) apply in the present case”.
II. RELEVANT DOMESTIC LAW
A. Civil Procedure Act of 1998
The relevant provisions of the Civil Procedure Act
1998, as valid at the material time, read as follows:
Section 34
“When an action does not concern a sum of money, but the plaintiff
specified in the lawsuit (тужба)
that he or she would accept monetary compensation instead of the claim, the
amount of that compensation would be regarded as the value of the dispute.
In other cases, when the action does not concern a sum of
money, the relevant value shall be the value of the dispute indicated by the
plaintiff in the lawsuit.
If, in the case referred to in paragraph 2 of this section, it
is obvious that the value of the subject matter of the dispute indicated by the
plaintiff is too high or too low, so that the question of ... the right to lodge
an appeal on points of law arises, the court shall, at the latest at the
preparatory hearing or, if no preparatory hearing was held, at the main hearing
before the examination of the merits, quickly and in an appropriate manner
verify the accuracy of the indicated value.”
Section 171(2)
“When the composition of the court or the right to lodge an
appeal on points of law, depends on the value of the dispute, and the object of
an action is not the sum of money, the plaintiff shall in the lawsuit indicate
the value of the dispute.”
Section 320(1)
“The court is bound by its judgment as soon as it has been
pronounced, and if the judgment has not been pronounced, as soon as it has been
dispatched (испратена).”
Section 368(3)
“An appeal on points of law is inadmissible in property-related
disputes in which the action does not concern a sum of money, transfer of
movable property or any other activity, if the value of the dispute, as
specified in the lawsuit by the plaintiff, does not exceed MKD 1,000,000.”
Section 374
“An appeal on points of law shall be lodged with the court
which gave the first-instance judgment ...”
Section 375 (1)
“A belated, incomplete or [otherwise] inadmissible appeal on
points of law, shall be declared inadmissible by a decision of the president of
a panel of the first-instance court, without holding a hearing.”
Section 376 (1), (3) and (5)
“The president of a panel of the first-instance court shall
forward a copy of a timely, complete and admissible appeal on points of law to
the opposing party and the public prosecutor authorised to lodge a request for
the protection of legality (барање
за заштита на
законитоста).
...
The opposing party can, within thirty days of the service of
the appeal on points of law, submit a reply to the appeal on points of law to
the [same] court.
...
On receipt of the reply ... the president of the panel of the
first-instance court shall forward the appeal on points of law and the reply...,
if any, together with the case file to the Supreme Court ...”
Section 378
“A belated, incomplete or [otherwise] inadmissible appeal on
points of law shall be declared inadmissible by the [Supreme Court], if the
first-instance court has not already rejected it, within its powers (section
375).”
B. Civil Procedure Act of 2005
Section 400 of the Civil Procedure Act of 2005 provides
as follows:
“(1) When the European Court of Human Rights has
found a violation of a human right or fundamental freedom guaranteed by the
Convention for the Protection of Human Rights and Fundamental Freedoms or
additional protocols thereto ratified by the Republic of Macedonia, a party
may, within thirty days of the judgment of the European Court of Human Rights
becoming final, file a petition with the court in the Republic of Macedonia
which adjudicated in the first instance in the proceedings in which the
decision violating the human right or fundamental freedom was rendered, to set
aside the decision by which the human right or fundamental freedom was
violated.
(2) The proceedings referred to in paragraph 1 of
this section shall be conducted by applying, mutatis mutandis, the provisions
on the reopening of proceedings.
(3) In the reopened proceedings the courts are
required to respect the legal opinions expressed in the final judgment of the
European Court of Human Rights finding a violation of a fundamental human right
or freedom.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant alleged violation of his rights under
Articles 6, 13 and 14 of the Convention since the Supreme Court had
rejected as inadmissible ratione valoris his appeal on points of law unlike
its earlier judgments in the same proceedings in which it had considered on the
merits the plaintiff’s appeals on points of law. The Court considers that the
applicant’s complaint should be analysed only under Article 6 of the
Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
The Government did not raise any objection as
regards the admissibility of the application.
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant submitted that the value of the
dispute had been MKD 3,006,472. It had been determined by an expert and
had remained the same throughout the proceedings. All judgments, except the
judgment of 14 November 2005 (see paragraph 18 above), specified that
amount in their introductions as the value of the dispute. He had been
accordingly “denied the rights that the plaintiff had enjoyed”. Lastly, he
stated that the value of a dispute was an important element of the proceedings,
which courts were required to observe ex officio.
In the observations, the Government referred to
submissions of the Supreme Court regarding the present case, in which that
court stated that:
“The Supreme Court has never examined the admissibility of the
appeal on points of law in the context of the value of the dispute before the plaintiff
had raised that objection in her reply to [the applicant’s] appeal. It did it
for the first time with its decision of 20 March 2008 when it rejected the
[applicant’s] appeal on points of law as inadmissible ...”
The Government further stated that the claim
value had not been specified in any of the judgments given after the Supreme
Court’s judgment of 18 May 2005. Furthermore, the applicant had made no
objections on that basis in his appeal against the first-instance court’s
decision of 14 November 2005, despite having had legal representation. Lastly,
they maintained that the courts had been under no obligation to determine the
claim value, which had been the sole responsibility of the plaintiff. The value
of the dispute could change during the proceedings. The Government concluded
that the Supreme Court’s judgment of 20 March 2008 to assess the admissibility ratione
valoris of the applicant’s appeal on points of law, especially since such
objection had been raised by the plaintiff, had been lawful and correct.
2. The Court’s assessment
The Court reiterates that the right to a fair
trial must be interpreted in the light of the Preamble to the Convention, which
declares the rule of law to be part of the common heritage of the Contracting
States. One of the fundamental aspects of the rule of law is the principle of
legal certainty (see Brumărescu v. Romania [GC], no. 28342/95, §
61, ECHR 1999-VII).
Furthermore, conflicting decisions in similar
cases heard in the same court which, in addition, is the court of last resort
in the matter may, in the absence of a mechanism which ensures consistency,
breach that principle and thereby undermine public confidence in the judiciary
(see Beian v. Romania (no. 1), no. 30658/05, §§ 36-39, ECHR 2007-XIII;
Tudor Tudor v. Romania, no. 21911/03, § 29, 24 March 2009; and Spaseski
and others v. the former Yugoslav Republic of Macedonia (dec.), no.
15905/07, 27 September 2011), such confidence being one of the essential
components of a State based on the rule of law. In the Iordan Iordanov and
Others case, the Court identified the issues that need to be assessed when
analysing whether conflicting decisions in similar cases stemming from the same
court violate the principle of legal certainty under Article 6 of the Convention:
1) the existence of "profound and long-lasting divergences” in the
relevant case-law; 2) whether the domestic law provides for a mechanism capable
of removing the judicial inconsistency; and 3) whether this mechanism was
applied and, if so, what were the effects (see Iordan Iordanov and
Others v. Bulgaria, no. 23530/02, § 49, 2 July 2009). Consequently, the
Contracting States have the obligation to organise their legal system so as to
avoid the adoption of discordant judgments (see Nejdet Şahin and
Perihan Şahin v. Turkey [GC], no. 13279/05, § 55, 20 October 2011).
The Court notes that the present case concerns
civil proceedings in which the plaintiff lodged two alternative claims against
the applicant, namely to be declared the owner of a half share of the property allegedly
acquired during marriage or to receive the monetary equivalent of half its
value. While the amount of that compensation was not specified in the claim,
the plaintiff set the value of the dispute at MKD 10,000. On the basis of an expert
report ordered soon after the introduction of the plaintiff’s action, the
first-instance court determined that the value of the property at issue was MKD
6,012,944 (see paragraph 7 above). The first-instance court apparently relied
on that amount for calculating the value of the dispute since it set the claim
value at MKD 3,006,472, which corresponded to half the property’s value as
determined by the expert and as claimed by the plaintiff (see paragraphs 8 and
9 above). That appears to be in compliance with section 34(1) of the Civil Procedure
Act 1998 (see paragraph 21 above). Until 14 November 2005, the date when the
first-instance court recognised the plaintiff as equal joint owner of the property
in question, the same value of the dispute (MKD 3,006,472) was indicated in almost
all court judgments (see paragraphs 8-17 above). During that time, there were
four first and second-instance court judgments, as well as two judgments by the
Supreme Court. In those judgments given upon an appeal on points of law by the
plaintiff, the Supreme Court accepted the value of the dispute specified by the
lower courts. That is evident from the introductory parts of its judgments
dated 30 September 1999 and 18 May 2005 (see paragraphs 11 and 17 above).
The Supreme Court, in those judgments, did not assess the admissibility of the
plaintiff’s appeals (see paragraph 27 above). The applicant also did not
contest, in reply to the plaintiff’s appeals, the Supreme Court’s jurisdiction
in this respect (see paragraph 16 above). However, nothing suggests nor has the
Court been presented with any evidence, that the Supreme Court was not vested
with a jurisdiction to review, under section 378 of the Civil Proceedings Act
1998 (see paragraph 21 above), the admissibility ratione valoris of
the plaintiff’s appeals on its own motion. The Supreme Court, in those
judgments, accepted jurisdiction ratione valoris and examined on the
merits the plaintiff’s appeals on points of law. In result, it ordered a reconsideration
of the case.
On 7 December 2006 the applicant lodged with the
Supreme Court an appeal on points of law against the judgments of 14 November
2005 and 24 October 2006 (see paragraphs 18 and 19 above) legitimately
expecting that it would be entertained on the merits. In this connection the
Court notes that the same rules on admissibility ratione valoris applied
throughout the entire proceedings. Furthermore, no information or evidence has
been provided that the plaintiff’s claim or the applicant’s counter claim were
amended after the Supreme Court’s judgment of 18 May 2005. With a judgment of
20 March 2008 the Supreme Court, however, rejected the applicant’s appeal on
points of law as inadmissible ratione valoris thus departing from its point
of view on this issue in its earlier judgments. The Supreme Court, having
regard to the value of the dispute specified in the plaintiff’s action (MKD
10,000), evidence of the court fees paid by the plaintiff and legal fees paid
by the applicant, ruled that the claim value was below the statutory threshold
specified in section 368 (3) of the Civil Proceedings Act 1998. In the absence
of any explanation, it remains unclear why it had not taken into consideration those
elements in its preceding judgments of 30 September 1999 and 18 May 2005. The
Supreme Court’s judgment of 20 March 2008 contained no reference to either judgment
and provided no explanation as to why different case-law was applied to deal
with the same issue in the same case. Furthermore, the Supreme Court was bound,
under domestic law, in particular section 320(1) of the Civil Procedure Act 1998
(see paragraph 21 above), by its earlier judgments, which had already resolved
the issue of the admissibility ratione valoris of the appeal on points
of law in the present case. Those judgments were binding for the same court in
the later stages of the same proceedings (see Vusić v. Croatia, no.
48101/07, § 43, 1 July 2010).
In the light of the above-mentioned
considerations, the Court considers the contradictory judgments made by the
Supreme Court in the same case regarding its jurisdiction ratione valoris
incompatible with the principle of legal certainty. By adopting a different
decision on the same issue in the same proceedings and thereby effectively
overruling its previous decisions, without any reference to them or reasoning
to the contrary, the Supreme Court in the instant case itself became the source
of uncertainty. In this way it infringed the principle of legal certainty,
inherent in Article 6 § 1 of the Convention (ibid, § 45).
There has accordingly been a violation of
Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 20,000 euros (EUR), of
which EUR 10,000 concerned the excessive length of the proceedings.
The Government contested these claims as
unsubstantiated and partly unrelated to the alleged violation.
The Court considers that the basis for an award
of just satisfaction in the present case must be the violation of the principle
of legal certainty under Article 6 of the Convention in relation to the Supreme
Court’s conflicting case-law, in the same proceedings, regarding its
jurisdiction ratione valoris. It further observes that the applicant’s just
satisfaction claims partly are not related to the violation found, but they
concern the length of the proceedings, an issue which was not raised in the
application. Furthermore, the Court cannot speculate as to what the outcome of
the impugned proceedings would have been had the violation not been found (see,
mutatis mutandis, Schmautzer v. Austria, 23 October 1995, § 44,
Series A no. 328-A, and Demerdžieva and Others v. the former Yugoslav
Republic of Macedonia, no. 19315/06, § 33, 10 June 2010). It therefore
finds no causal link between the damage claimed and its finding of a violation
of Article 6. Accordingly, the Court makes no award under this head.
The Court considers however that, in principle,
the most appropriate form of relief would be to ensure that the applicant, if
he so requests, is granted a retrial under section 400 of the Civil Procedure Act
2005 (see paragraph 22 above), in keeping with all the requirements of a fair
hearing (see Vusić, cited above, § 58 and Demerdžieva and Others,
cited above, § 34).
B. Costs and expenses
The applicant also claimed EUR 5,000 for the
costs and expenses incurred before the domestic courts and EUR 700 for those
incurred before the Court. No evidence was submitted in support of these
claims. He further claimed EUR 4,100 corresponding to costs of the trial and
enforcement incurred by the plaintiff, for which he was made liable by the
domestic courts in the impugned proceedings.
The Government contested these claims as
unsubstantiated.
The Court points out that under Rule 60 of the
Rules of Court “the applicant must submit itemised particulars of all claims,
together with any relevant supporting documents, failing which the Chamber may
reject the claim in whole or in part” (see Parizov v. the former Yugoslav
Republic of Macedonia, no. 14258/03, § 71, 7 February 2008). The Court
notes that the applicant did not submit any supporting documents in respect of
his claim for reimbursement of costs and expenses incurred before the domestic
courts and before the Court. Furthermore, it observes that the claim for
reimbursement of the trial and enforcement costs incurred by the plaintiff in
the impugned proceedings is closely linked to the outcome of those proceedings
for which the Court has already stated that it cannot speculate as to what it would
have been had the violation not been found. Accordingly, it does not award any
sum under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 6 of the Convention;
3. Dismisses the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 25 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Isabelle
Berro-Lefčvre
Registrar President
